Power of Attorney Abuse
Power of attorney abuse occurs when a trusted person violates that trust and causes damages to a vulnerable individual. Often the person harmed is elderly, disabled or a vulnerable adult who is unable to protect themselves. This type of abuse can have severe consequences.
What is a Power of Attorney?
A power of attorney (POA) is a powerful legal document that permits someone to appoint another person or organization (known as a proxy) to manage his/her affairs should he/she become unable to do so. The specific language of the power of attorney determines what authority is granted. A power of attorney is required to be signed by the maker and by two witnesses to the maker’s signature. Additionally, a notary must acknowledge the maker’s signature for the power of attorney to be lawfully executed and valid under Florida law. If a power of attorney was validly executed under the other state’s laws, then it may be used in Florida, but its use will be subject to Florida’s Power of Attorney Act and other state laws.
Types of Power of Attorneys
Health Care Power of Attorney
A health care power of attorney grants another person the legal right and authority to make medical decisions on your behalf if you are mentally incompetent, unconscious, or become unable to make your own decisions.
General Power of Attorney
A general power of attorney grants wide powers to someone acting on your behalf. Those powers usually include settling claims, making gifts, financial and business transactions and purchasing life insurance.
Special Power of Attorney
A special power of attorney is given when you want to grant someone a very specific power.
Power and Duties of Agent
An agent is a fiduciary and must meet certain standards of care when performing his or her duties. A fiduciary relationship is one of trust. If the agent violates this trust, he/she may face both civil and criminal penalties.
An agent may perform only those acts specified in the power of attorney and any acts reasonably necessary to give effect to the specified acts. If an agent is unsure about authorization to do a particular act, the agent should consult the lawyer who prepared the document or other legal counsel. No matter what, an agent cannot:
- Sign a document stating that the maker has knowledge of certain facts.
- Create or revoke a will or codicil for the maker.
When Does a Power of Attorney End?
- The principal dies.
- The principal revokes the power of attorney.
- A court determines that the principal is totally or partially incapacitated and does not specifically provide that the power of attorney is to remain in force.
- The purpose of the power of attorney is completed.
- The term of the power of attorney expires.
- In any of these instances, the power of attorney is terminated. If, after having knowledge of any of these events, a person continues to act as agent, he or she is acting without authority.
Signs of Power of Attorney Abuse
It is important to recognize situations when they arise where an agent abuses his/her fiduciary duties. These unlawful acts are almost always done purposefully and manifest themselves in the form of fraud, self-dealing (such as changing beneficiaries on account titles for life insurance, bank accounts, and pay on death accounts) and/or outright theft of the maker’s finances. Under Florida’s Power of Attorney Act, a court has the authority to review the agent’s conduct, terminate the agent’s authority, remove the agent, or grant other appropriate relief including assessing damages and attorney’s fees against an agent who abuses his duties. Breach of fiduciary duty occurs when an agent engages in transactions that do not correspond with the interests of the principal, such as failing to provide proper medical care for the principal, or the agent is found to be self-dealing. Examples may include:
- Financial Abuse and Misuse of the principal’s assets such as unexplained withdrawals
- Isolating the principal, preventing him/her from communicating, and/or attempting to control him/her.
- Failing to provide adequate are for principal such as denying him/her access to doctors and causing them to miss appointments
- Manipulating the principal by unduly influencing him/her into making decisions that they don’t want to make such as changing beneficiaries and causing the principal to make changes to their Will or Trust.
- Acting in a way incongruent with the best interests of the principal.
Who Can Sue When There Is an Abuse of the Power of Attorney?
The following people have been deemed to have the legal right to sue for abuse of a power attorney:
- The principal or the agent, including any nominated successor agent.
- A guardian, conservator, trustee, or other fiduciary acting for the principal or the principal’s estate.
- A person authorized to make health care decisions for the principal if the health care of the principal is affected by the actions of the agent.
- Any other interested person if the person demonstrates to the court’s satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court’s intervention is necessary.
- A governmental agency having regulatory authority to protect the welfare of the principal.
- A person asked to honor the power of attorney.
If you suspect someone has committed Power of Attorney Abuse or if you have been accused of Power of Attorney Abuse, your next step should be to contact a competent attorney to protect your rights. Speak with Ormond Beach Power of Attorney Abuse attorney Andrew Pascale now.
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